P L D 1957 Dacca 486 (PLP)

RAHMAN, J.‑

This appeal under section 417 of the Code of Criminal Procedure is by the State against an order of acquittal passed by Mr. G. M. Chowdhury, Magistrate of the First Class, Mymensingh, on the 19th of March 1956. The respondent before us, who is the Secretary of the Fulbaria Joutha Bank, was charged under section 406 of the P. P. C. of having defalcated a sum of 742‑7‑7 belonging to the said bank and payable to the Mymensingh Central Co‑operative Bank Limited. The prosecution was started on the complaint filed on the 3rd of May 1955, by the Secretary of the Mymensingh Central Co‑operative Bank Limited. The police in this case after due investigation submitted a charge- sheet against the respondent on the 14th of October 1955. Thereafter on the 14th February 1956, five witnesses were examined on behalf of the prosecution before the learned Magistrate and after such examination the learned Magistrate framed a charge under section 406 of the P. P. C. and adjourn ed the case to the 19th of March 1956, for cross‑examination of the prosecution witnesses. On the 19th of March 1956, all the five prosecution witnesses could not be present but the Court Sub‑Inspector filed a hazira in respect of two of the prosecution witnesses and prayed for adjournment of the case. The respondent on this date also filed an application for adjournment on the ground that he had not been able to obtain the copies of certain account papers exhibited in the case without which he could not instruct his lawyer to properly cross‑examine the witnesses. The joint prayer for adjournment was, however, rejected and the case was called on. Unfortunately, even the two prosecution witnesses on whose behalf the hazira was filed could not be found in spite of repeated calls. Hence the learned Magistrate recorded the following orders:

"P. Ws. absent on repeated call, Out of 5, hazira has been filed only for 2 P. Ws. and they are absent on call. It is I 1 a.m. now. I do not see any reason why I should wait any more. The evidence of the P. Ws. is expunged from the records and I find the accused not guilty under section 406 P. P. C. The accused is, therefore, acquitted under section 258, Criminal P. C. Inform D. M. and S. P." The learned Counsel appearing on behalf of the State challenges this order as having been made without jurisdiction. His contention is that after a charge has been framed, the Court, can only acquit an accused after writing a proper judgment. It has no power at all to expunge the evidence of the witnesses, for, the Criminal P. C. does not provide for any such course in support of this contention, reliance has been placed on a decision in the case of Nutbehari Sarkar v. Sarada Prashad Choudhury and another (37 C W N 712), where, Pearson J., and Patterson, J., observed that after charges have been framed in a warrant case‑the case before us is also a warrant case‑the Magistrate is not entitled to record an order of acquittal under section 25814 of the Code of Criminal Procedure, because of the absence of) the complainant or for that matter of his witnesses. The same view has also been taken in this Court in the case of Sreejan Howladar v. Asmat Ali Howladar and others (6 D L R 30) by Ellis, C. J., and Zaman, J. We respectfully agree with the views express ed in these cases. In the result, therefore, we allow this appeal, set aside the order of acquittal and direct that the respondent be tried in accordance with law in respect of the aforesaid charge under section 406 of the P. F. C. from the stage in which the said prosecution was immediately before the order of acquittal was passed on the 9th of March 1956. Let the records be sent down immediately and the case be disposed of as expeditiously as possible. In the meantime, the respondent will continue on the same bail on which he was released, after his re‑arrest on the admission of this appeal, during the pendency of the said trial. HASSAN, J.‑

‑I agree. Z. A. S. Appeal allowed. Retrial ordered.